Blocker v. Miles
Filing
17
MEMORANDUM OPINION AND ORDER: Blocker's Objections to the R & R 14 are overruled and the R & R 13 is adopted. Petitioner's Motion for a Stay 2 is denied. (Written Opinion) Signed by Chief Judge John R. Tunheim on 8/2/2018. (JMK)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
BRYAN NMN BLOCKER,
Civil No. 18-542 (JRT/BRT)
Petitioner,
v.
MEMORANDUM OPINION
AND ORDER
EDDIE MILES,
Warden, MCF – Stillwater,
Respondent.
Bryan NMN Blocker, Reg. No. 247428, Minnesota Correctional Facility –
Stillwater, 907 Pickett Street North, Bayport, MN 55003, pro se petitioner.
Anna Light and Kathryn M. Keena, DAKOTA COUNTY ATTORNEY’S
OFFICE, 1560 Highway 55, Hastings, MN 55033, and Edwin W.
Stockmeyer, III, and Matthew Frank, MINNESOTA ATTORNEY
GENERAL’S OFFICE, 445 Minnesota Street, Suite 1800, St. Paul, MN
55101, for defendant.
On February 23, 2018, Petitioner Bryan Blocker filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. (Pet., Feb. 23, 2018, Docket No. 1.) Blocker
concurrently moved to temporarily stay proceedings so that he could exhaust one of his
claims in state court. (Mot. for Temp. Stay, Feb. 23, 2018, Docket No. 2.) United States
Magistrate Judge Becky R. Thorson issued a Report and Recommendation (“R&R”)
recommending that the Court deny Blocker’s motion to stay, allow him to delete his
unexhausted claims, and allow him to proceed with his exhausted claims. (R&R at 3, June
25, 2018, Docket No. 13.) Blocker objects. (Objs., July 11, 2018, Docket No. 14.)
-1-
Because Blocker has not established good cause for his failure to exhaust and has not
shown that his unexhausted claims are potentially meritorious, the Court will overrule his
objections, adopt the R&R, and deny his motion to stay.
DISCUSSION
I.
STANDARD OF REVIEW
Upon the filing of an R&R by a magistrate judge, “a party may serve and file
specific written objections to the proposed findings and recommendations.” Fed. R. Civ.
P. 72(b)(2); accord D. Minn. LR 72.2(b)(1). “The district judge must determine de novo
any part of the magistrate judge’s disposition that has been properly objected to.” Fed. R.
Civ. P. 72(b)(3); accord D. Minn. LR 72.2(b)(3). To be proper, the objections must
specifically identify the portions of the R&R to which the party objects and explain the
basis for the objections. Turner v. Minnesota, No. 16-3962, 2017 WL 5513629, at *1 (D.
Minn. Nov. 17, 2017). Blocker timely filed objections that specifically identify the
portions of the R&R to which he objects, and he explains the reasons for his objections.
As such, the Court will review the objected-to portions of the R&R de novo.
II.
STAY-AND-ABEYANCE PROCEDURE
“An application for a writ of habeas corpus on behalf of a person in custody pursuant
to the judgment of a State court shall not be granted unless it appears that . . . the applicant
has exhausted the remedies available in the courts of the State.”
28 U.S.C.
§ 2254(b)(1)(A). Habeas petitions that mix exhausted and unexhausted claims may not be
adjudicated by federal district courts. Rhines v. Weber, 544 U.S. 269, 273-74 (2005).
-2-
However, courts may stay mixed petitions and hold them in abeyance while a petitioner
returns to state court to exhaust previously unexhausted claims. Id. at 275-77. This “stayand-abeyance” procedure avoids the risk that a petitioner forever loses the opportunity for
federal review of the unexhausted claims due to AEDPA’s 1-year statute of limitations. Id.
Nevertheless, this procedure may only be used if “the petitioner had good cause for his
failure to exhaust, [the] unexhausted claims are potentially meritorious, and there is no
indication that the petitioner engaged in intentionally dilatory litigation tactics.” Id. at 278.
Where stay and abeyance are not appropriate, district courts should allow petitioners to
delete their unexhausted claims and proceed with the exhausted claims. Id.
III.
BLOCKER’S OBJECTIONS
Blocker first argues that the R&R mischaracterizes his motion to stay as a dilatory
litigation tactic. On the contrary, the R&R noted that “there is no indication that Petitioner
is engaging in dilatory litigation tactics.” (R&R at 2 (emphasis added).) Blocker’s
objection misunderstands the R&R’s analysis; thus, the Court will overrule this objection.
Blocker next objects to the R&R’s recommendation that he be allowed to delete the
unexhausted claims and proceed with the exhausted claims. Blocker’s basis for this
objection revolves mostly around his status as a pro se party.1 The Court is sympathetic to
Blocker’s situation; however, Blocker has not provided any basis upon which the Court
can find that he had good cause for failing to exhaust his claims or that the unexhausted
claims are potentially meritorious, as required by Supreme Court precedent.
1
The Court notes that Blocker has not filed a motion to appoint counsel.
-3-
As to good cause, the only explanation Blocker gives is that he does not have the
assistance of counsel. But beyond alleging that his status as a pro se petitioner makes
litigation slower and more difficult, Blocker has not explained how this lack of assistance
has kept him from exhausting his claim. He does not allege that he missed a deadline or
that he sought appointment of counsel but was denied.
Even if Blocker could demonstrate good cause, he has not demonstrated that his
unexhausted claims are meritorious. The Court liberally construes documents filed pro se.
Erickson v. Pardus, 551 U.S. 89, 94 (2007). But in this case, there is nothing to construe.
Neither Blocker’s petition nor his objections to the R&R allege any facts to support a claim
for ineffective assistance of counsel. See Bracken v. Dormire, 247 F.3d 699, 703 (8th Cir.
2001) (“This is not a case where the petitioner inartfully raised factual issues that
implicated legal propositions that he could not reasonably be held responsible for
articulating.”). As such, the Court must overrule Blocker’s objections and adopt the R&R.
ORDER
Based on the foregoing, and all the files, records, and proceedings herein, Blocker’s
Objections to the R&R [Docket No. 14] are OVERRULED and the R&R [Docket No. 13]
is ADOPTED. Accordingly, IT IS HEREBY ORDERED that:
1. Petitioner’s Motion for a Stay [Docket No. 2] is DENIED.
-4-
2. Petitioner is afforded leave to amend his petition to delete the unexhausted claims.
DATED: August 2, 2018
at Minneapolis, Minnesota.
________s/John R. Tunheim_________
JOHN R. TUNHEIM
Chief Judge
United States District Court
-5-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?